What is an Affidavit of Merit?

An Affidavit of Merit is a sworn legal document often required in medical malpractice and certain professional negligence cases. It is typically signed by a qualified expert who attests that the plaintiff’s claim has merit—meaning that the case is not frivolous and meets basic legal standards for negligence.

This requirement exists in many states to prevent baseless lawsuits and ensure that only legitimate claims move forward.

Why is an affidavit of merit required in some personal injury cases?

Courts use affidavits of merit as a gatekeeping tool to reduce the burden of meritless litigation. In states that require it, a plaintiff must submit the affidavit early in the lawsuit—often with the initial complaint or shortly after. The affidavit must usually be signed by a licensed professional in the same field as the defendant.

Failure to submit this affidavit can result in dismissal of the case.

• It provides early expert validation of the plaintiff’s claim.

• Common in medical malpractice lawsuits, but may apply to other professional negligence cases (like legal or engineering malpractice).

• Helps courts filter out baseless claims before the costly discovery phase.

• Deadlines to submit vary by state, and extensions may be limited.

What must be included in an affidavit of merit?

The exact contents vary by state, but the affidavit typically includes a statement from an expert witness who has reviewed the case and believes that the defendant likely breached the standard of care. The expert must be qualified—often requiring experience, licensing, and specialization in the same field.

Omitting essential elements may result in a motion to dismiss.

• Name and qualifications of the expert witness

• Statement of review, confirming that the expert has reviewed the relevant facts or records

• Opinion that the case has merit, and that the standard of care was likely breached

• Signature under oath, often notarized

Which states require an affidavit of merit?

More than half of U.S. states require an affidavit of merit in medical malpractice cases. Others use similar pre-suit requirements under different names, such as a “certificate of merit.” The requirements, timing, and penalties for noncompliance vary widely.

Some states may allow exceptions, especially if the statute of limitations is approaching or if the plaintiff couldn’t obtain records in time.

• Common in states like NJ, PA, IL, TX, and CA

• Rules vary—some require submission with the complaint, others within 60–120 days

• Some states allow dismissal without prejudice, giving the plaintiff a chance to refile

• A few states offer pre-lawsuit panels as an alternative

What happens if an affidavit of merit is not filed?

Failing to file an affidavit of merit in a jurisdiction where it’s required can be fatal to a case. Courts may dismiss the lawsuit, either with or without prejudice. Dismissal with prejudice means the case can’t be refiled, so plaintiffs must understand the requirement early on.

Some jurisdictions allow limited flexibility, especially for pro se litigants or unique circumstances.

• Case may be dismissed immediately for failure to meet procedural requirements

• Dismissal with prejudice means no second chance to refile

• Extensions may be granted in rare cases, such as difficulty finding an expert

• Consulting an attorney early can prevent costly procedural missteps

Conclusion

An Affidavit of Merit is a critical procedural step in many medical malpractice and professional negligence cases. It’s designed to prevent frivolous lawsuits by requiring expert validation early in the process. Understanding your state’s specific requirements is vital, as failing to file one properly can result in losing your case before it truly begins.